County Court Defence - Overstay

wizzybee

RobinofLoxley wrote: »

I think what should be questioned is the fairness of the scheme. The fact that a motorist can't pay for the 2nd hour when the free first hour is up and they then realise they are going to be staying longer, IMO is flawed.

Yes!

and..

The claimant has provided a copy of the agreement of authority between it and the landowner in their WS. This agreemnent which is dated January 2018, refers to a contract, which they have also provided a copy of. The contract clearly states is for a fixed period of 36 months from 1st December 2010. So this contract expired on 30th Novermber 2013 by my reckoning.

Can the claimants say it was an oversight that they provided an out of date contract and that they actually have had an extension of that contract, or a new contract and produce it at the hearing?

Umkomaas

Can the claimants say it was an oversight that they provided an out of date contract and that they actually have had an extension of that contract,

The can do, then it will be up to you to argue it via the Judge.

or a new contract and produce it at the hearing?

They can't produce anything at the hearing that has not already been sent to the court and the Defendant. No ambushes permitted.

wizzybee

How about this?


1. I was the registered keeper of the vehicle at the time of the alleged parking contravention however there is no evidence that I was the driver.

2. As the keeper, I am not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4, see Exhibit A.

3. Photos in Exhibit B show copies of ANPR photos obtained from ‘myparkingcharge.co.uk’. These do not show who was driving the vehicle and no other evidence has been supplied to show who was driving.

4. This vehicle was regularly driven by my brother XXX, see Exhibit C (Isnsurance doc) At the time of the alleged parking contravention as he was home from university for the Christmas holidays between 14th December 2018 and 28th January 2019. See Exhibit D (term dates of uni) It could easily have been either of us driving the car on the claim date as we shared use of the car equally.

5. It is not clear from any of the signs or instructions on the ticket machines that a ticket must be obtained if you are staying for less than one hour. The instructions are only for if you intend to stay for up to two hours when it states that you have to purchase a ticket for £1. See Exhibit E

6. My family, friends and I have used this car park on many occasions and if staying for less than one hour have not necessarily obtained a ticket. None have ever had any contact from the Claimant regarding a breach of terms and conditions following stays of less than one hour without obtaining a ticket.

7. Therefore, previous actions have shown that the claimant does not consider parking without obtaining a ticket is a breach of the terms and conditions as long as the stay is for less than one hour.

8. The terms and conditions on the signs say that to park in excess of the 1 hour free period a ticket must be purchased on arrival. This assumes that a motorist definitely knows that they will be there for more than one hour at their time of arrival.

9. If a motorist realises at any time during the first hour, even if is only a few minutes after arrival, that their car will be parked for longer than one hour, there is no legitimate way for them to pay £1 for the second hour.

10. It is unfair to deny a motorist an opportunity to comply with the terms and conditions for parking no matter how willing and able they are at the time.

11. The Claimant does not have authority to issue parking charges or pursue payment by means of litigation.

12. The Claimant has provided a copy of a Contract Statement of Authority and which in paragraph 3 refers to a contract between the Claimant and Henderson (UK) Property Fund, the landowner of Berkeley Centre. This contract is signed and date 18/01/2018.

13. A copy of the contract is also provided. Paragraph 2 states “[the Claimant] will provide a parking control service at the car park for a fixed period of 36 months from the 1st day of December 2010….” Therefore, this contract expired on the 30th November 2013.

14. As the contract between the landowner and the Claimant had expired over 5 years previously to the date of the claim the Claimant does not have the authority to issue parking charges or pursue payment of any charges.

15. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

RobinofLoxley

12. The Claimant has provided a copy of a Contract Statement of Authority and which in paragraph 3 refers to a contract between the Claimant and Henderson (UK) Property Fund, the landowner of Berkeley Centre. This contract is signed and date 18/01/2018.

13. A copy of the contract is also provided. Paragraph 2 states “[the Claimant] will provide a parking control service at the car park for a fixed period of 36 months from the 1st day of December 2010….” Therefore, this contract expired on the 30th November 2013.

@12. Is this document actually titled 'Contract', is it in the name of VCS or Excel Parking Services and is it signed by someone on behalf of Henderson Property Fund?

@13. Is this contract in the name of VCS or Excel and does it definitely not say anywhere it's a rolling contract.

A few more questions. When was the event, after September 2018? Are the photos VCS have provided in their WS dated and are they the same as the current signs? Are VCS relying on POFA?

wizzybee

RobinofLoxley wrote: »

@12. Is this document actually titled 'Contract', is it in the name of VCS or Excel Parking Services and is it signed by someone on behalf of Henderson Property Fund?

The first document is titled 'Contract of Statement Authority', the second is 'Terms and Conditions of contract (ANPR PCN Scheme) and it has a Contract Number. The contract of statement Authority is "on behalf of Henderson (UK) Property Fund" and is signed by a senior solicitor for Henderson. VCS is named as the site operator.

[QUOTE=RobinofLoxley;76563007@13._Is_this_contract_in_the_name_of_VCS_or_Excel_and_does_it_definitely_not_say_anywhere_it's_a_rolling_contract.[/QUOTE]

I have read through it and can't see any refernece to it being a rolling contract or having scope for renewal.


[QUOTE=RobinofLoxley;76563007)_A_few_more_questions._When_was_the_event,_after_September_2018?_Are_the_photos_VCS_have_provided_in_their_WS_dated_and_are_they_the_same_as_the_current_signs?_Are_VCS_relying_on_POFA?[/QUOTE]

The photos they have supplied are dated November 2018, so before the claim date. They are the same signs that were there on the the claim date though.

wizzybee

....yes they are relying on POFA.

I need to send the WS off today so haven't got much opportunity to amend.

Coupon-mad

You haven't contested the POFA compliance at all and you need to. That means saying how the PCN is non compliant with the law for 'keeper liability' (postal one, not windscreen? Was there a red card on the windscreen first?).

VCS have NEVER complied with the POFA in PCN wording, so no saying they have!

If they've sent their WS to you already, then you also need to find what posters here have said before about the case law they cite - all you need to do is search 'VCS' with the surname of some case law in their WS...easy peasy keyword search, this has all been done for you to copy.

Then there is the important point (which I think you can find examples of in Google images) that I seem to recall at some point in recent years, one of the large signs there said EXCEL manage it, not VCS...can you show that as evidence?

You need that important issue evidenced too, as it means a driver can't be deemed to have contracted with VCS if a completely different company (and they are different) is on the signs offering a parking licence. Also it shows untruth in their WS, if they've said VCS were running this place without interruption since 2010.

And surely a 2010 contract was a clamping contract (now illegal?!) Can't be current.

Finally you need a COSTS SCHEDULE, a contents page (all pages numbered) and a SUPPLEMENTARY WS about why VCS can't add sixty quid, due to two laws and one binding case law. That supplementary WS and attachments you must include, is 'damage limitation, in case you get a bad Judge, and pre-written examples from last week can be found in seconds for you to copy. Search for the word in bold.

wizzybee

- I've put back the parts about contesting the POFA complicance
- will ahve a look at case law but am at work and haven't really got time!
- there is a bit on the signs that says you are entering into a contact with VCS.
- will look up the costs schedule and supplementary WS

Thank you!!

wizzybee

...I'm not sure what to put in the costs schedule. The hearing is currently going to be on a date when my son can't attend adn I can't attend as a lay witness without him there. He has asked for it to be moved but hasn't heard back yet so we have to assume it will still be on the 18th.

wizzybee

Sorry, I've searched and can't find an example of a supplementary witness statement about the additional costs. .. therese's plenty of things for defence statements. I'm panicking now as need to get stuff in the post and I jsut haven't got time to read through things and rewrite it all. Sorry, I know you're trying to help.